Weighing Alternatives To Affirmative Action

This is TALK OF THE NATION. I'm Neal Conan in Washington. Tomorrow the Supreme Court revisits the decades-long debate on the use of affirmative action in college admissions. In the latest case, Fisher versus University of Texas at Austin, a white student argues that she was denied admission on account of her race.

Many legal experts anticipate that this time the court may narrow or even eliminate affirmative action. The court upheld the policy as recently as 2003. In the majority opinion now-retired Justice Sandra Day O'Conner wrote that the need for racial preferences might end in maybe 25 years.

What higher education might look like if the court ends affirmative action this time can be seen in several states which barred the policy on their own. If you work at a college or a university, what's changed in the past decade since the last Supreme Court decision on affirmative action? Give us a call. We'd especially like to hear from those of you who work in states which bar affirmative action - 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, jazz harmonica player Gregoire Maret leads a trio here in Studio 3A. But first, Richard Kahlenberg joins us. He's also here in the studio. He's not going to play harmonica, I don't think.

(LAUGHTER)

CONAN: He's a senior fellow at the Century Foundation. Nice to have you with us today.

RICHARD KAHLENBERG: Very good to be here.

CONAN: And I think some may remember that the racial makeup of schools like Berkeley changed dramatically after affirmative action ended in California.

KAHLENBERG: That's right. There were initial drops in the representation of African-American and Latino students. The good news, though, is that for those of us who care about racial and ethnic diversity and economic diversity, is that universities didn't simply give up. So we have a new study, which looks at leading universities in - 10 leading universities.

And we found that seven of them were able to preserve racial and ethnic diversity, preserve or exceed the level of black and Latino representation through a number of alternative means. Many of them look at socioeconomic disadvantage and provide a leg up to students of all races who are low-income or have - who grow up in low-income neighborhoods.

A number of them got rid of legacy preferences, those preferences for the children of alumni who tend to be wealthy and advantaged.

CONAN: And tend to make donations.

KAHLENBERG: Yes, that's right.

(LAUGHTER)

KAHLENBERG: And there were a number of universities that began partnerships with high schools, low-income high schools in the area, and tried to expand the pipeline of students. A number of these states also beefed up financial aid to make this all possible, for low-income students to attend college.

So to my mind these were all very positive things that universities should have been doing all along anyway, and in most cases, not all but in most cases they were able to also promote racial and ethnic diversity.

CONAN: And so these are least putatively colorblind. For example, in Texas, the state there I think guarantees anybody who graduates in the top 10 percent of their high school class admissions to the state university, but that means that a lot of rural high schools who didn't necessarily send all that many students to Austin before now can.

KAHLENBERG: That's right, so you end up having students who come from high schools that had never sent someone to UT Austin now having access. And one of the exciting things is that there was an interesting political coalition of white, you know, rural state legislators and civil rights folks and urban legislators who all came together and said we want to open access for students of all different backgrounds who haven't in the past participated at the University of Texas at Austin.

CONAN: But these levels that equal or exceed previous levels of diversity, that's not true everywhere.

KAHLENBERG: That's right, so in seven of the 10 states we found that the levels met or exceeded, but in three cases they didn't. The three were the University of California at Berkeley, UCLA, and the University of Michigan. And what pops out about those three particular institutions is that they are highly selective and draw on a national pool of applicants, which is relevant because I think the national nature of their applicant pool means that the decline in black and Latino representation is probably overstated in terms of how it would apply to other parts of the country.

And the reason is that if - these three institutions are playing on a field that is not level in trying to attract African-American and Latino students. So for example, if you have a highly talented African-American student who gets into UC Berkeley without a racial preference, so they're very high-testing, they're also likely to get into a place like Stanford with a racial preference.

And you know, being the way people are, are likely to accept the Stanford proposal because it ranks a little bit higher in US News & World Report. And so the declines at Berkeley, UCLA and Michigan I think are overstated in the sense that they wouldn't necessarily translate if the Supreme Court were to apply a national rule forbidding racial preferences.

CONAN: And forbidding racial preferences, just to clarify your remarks, at public universities, so Stanford being private, of course, they can do whatever they want.

KAHLENBERG: Well, maybe. I mean, so if the Supreme Court rules against the University of Texas, the decision, most legal observers believe, will also apply to private institutions. And the reason is that the Supreme Court in the past has interpreted Title VI of the Civil Rights Act to mean the same thing as the Equal Protection Clause of the Constitution.

And Title VI applies to every private institution that takes federal funds, which is almost every university.

CONAN: Everyone, yeah.

KAHLENBERG: So this will have really important implications nationally if the Supreme Court curtails the ability of institutions to use race.

CONAN: One of the universities included in Richard Kahlenberg's report, "A Better Affirmative Action," is University of Georgia. UGA abandoned racial preferences in admissions a decade ago. Joining us now, Nancy McDuff, associate vice president for admissions and enrollment management, at the University of Georgia. She also chairs the Association of Chief Admission Officers of Public Universities. Nice to have you back on TALK OF THE NATION.

NANCY MCDUFF: Thank you, Neal, glad to be here.

CONAN: Now, 2003, you changed this process. What happened immediately, and what's happened over time?

MCDUFF: Well, if you look at the University of Georgia from the time that we stopped a dual admission standard in the mid-1990s to when we dropped race altogether, we had a steady decline in our racial composition of our campus. We are sitting in a state that's very diverse and a growing diversity in the state, and that didn't serve the state very well.

When the university decided in 2002 that we would no longer take race into consideration after a pretty lengthy legal battle, we had to work pretty hard as an institution to come up with creative and new ways to get the word out, to encourage students to enroll here.

One of the things we found, and Richard, you related to this, the more selective the institution, the harder it is to find qualified students because everyone is competing for that same student. And so we knew that any student we admitted to the University of Georgia had many options, and we just wanted them to see us as their top option.

CONAN: And so how did you do that?

MCDUFF: I think first and foremost we had support from the very top of the administration. It was a priority of this institution to serve the citizens of Georgia well by providing a diverse campus. We don't want the Georgia residents to only be surrounded by folks that look just like themselves, have the same experiences, because that doesn't make them a good global citizen. We had to...

CONAN: Not to put too fine a point on it - you don't want to resegregate.

MCDUFF: That's exactly right. We wanted to make certain that we served all of our students best. The best education occurs in a diverse environment. So we had to get buy-in from all over campus and coordination and support from various units across the campus.

If we held a reception for admitted students, the deans were showing up to show their support, to talk with students. If someone on campus was hosting a program, they would make sure the admissions office knew about it so that we could have a chance to talk to the students about the opportunities at the university.

You know, colleges and universities all across the country are doing pretty much the same type of recruiting. We all put out pretty good brochures, we attend college fairs, and we visit students. We try and get the message across, and if they're admitted, we try and convince them that we're the right institution.

And I think the two things that we really had going for us at the University of Georgia is first and foremost if a student enrolled here, they were academically competitive. They could make it academically. And we met their expectations.

So they had a good experience, they went back into their communities and talked about it, whether it was to their high school or their church friends or their neighborhood. And a current who's having a good experience who talks about it is singularly the best marketing you can have.

So over time, as more and more students of color enrolled at the university, they were retaining well, they were graduating well, they were having a good experience. They talked about it.

CONAN: We're talking with Nancy McDuff, associate vice president for admissions at the University of Georgia. Also with us, Richard Kahlenberg, a senior fellow at the Century Foundation, wrote commentary for the Chronicle of Higher Education, "A New Kind of Affirmative Action Can Ensure Diversity."

We want to hear from those of you who work on university campuses, particularly in states which have barred the use of affirmative action in admissions, 800-989-8255. Email us, talk@npr.org. Chris is on the line from Cincinnati.

CHRIS: Good afternoon.

CONAN: Go ahead, Chris.

CHRIS: Yes, I just found over the last - specifically the last six to eight years, especially students of color, students from various, especially multiracial backgrounds, are not necessarily having trouble accessing a quality higher education but accessing higher education to begin with due to the quality of inner-city high schools.

The - if it were not for the college access professionals working in inner-city high schools, such as in Baltimore and D.C. with College Bound in Baltimore and DC CAP in D.C., those students would not have an advocate when it came to accessing higher education.

CONAN: And do you work on a campus?

CHRIS: I do indeed.

CONAN: In the admissions process?

CHRIS: Yes.

CONAN: And so do you find them qualified? Do you find that they're getting in? Do you find that they're thriving?

CHRIS: Most often students who have made the effort to be on time in the college admissions process end up doing OK in college, especially in the first year. But what is necessarily vital is the support on the home base, support from parents, support from family, support from the - as I mentioned before, the college access professionals who work with those students even to make sure that they are persisting through college and persisting to graduation.

The problem arises in the number of students who are not qualified, even to begin at the college level, in critical reading and math.

CONAN: Chris, we'll follow up on that point when we get back after a short break. Thanks very much for the call.

CHRIS: Thank you.

CONAN: Again, we're talking about possibly the world after affirmative action. The Supreme Court will hear arguments on that point tomorrow. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. Seven states already ban the use of racial preferences in college and university admissions. They are Arizona, California, Florida, Michigan, Nebraska, New Hampshire and Washington State. Tomorrow, the Supreme Court hears arguments in a case that may end affirmative action on campuses nationwide.

It's notoriously difficult to predict any ruling by the Supreme Court, but many analysts point to the more conservative makeup of this court and suggest a different outcome from the 2003 decision that upheld racial preferences.

So if not affirmative action, then what? We're talking today about some alternatives. If you work at a college or a university, what's changed in the past decade since the last Supreme Court decision on affirmative action? We especially want to hear from those of you who work in states that bar affirmative action, 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Our guests are Richard Kahlenberg, senior fellow at the Century Foundation, co-author of a recent study, "A Better Affirmative Action: State Universities That Created Alternatives to Racial Preferences." Also with us, Nancy McDuff, who serves as associate vice president for admissions and enrollment management at the University of Georgia and chairs the Association of Chief Admission Officers of Public Universities.

Richard Kahlenberg, our point from the caller in Cincinnati just before the break, that some of those who gain admission are not qualified for college work.

KAHLENBERG: Well, that's right. I mean, that's a big issue. There's a new book out called "Mismatch" by Rick Sander and Stuart Taylor that looks at that issue and finds that in some cases very large preferences provided in admissions end up hurting some of the students who it's intended to benefit.

But in terms of admitting more low-income students, which I think we really need to do, there's a lot of research to suggest that there are large numbers of low-income and working-class students who could do the work at even the most selective colleges and are not now being admitted.

Right now about - rich kids outnumber poor kids by 25 to one on the nation's selective campuses, and it's something that I hope that universities when they re-examine their affirmative action policies try to address at long last.

CONAN: Nancy McDuff, the University of Georgia ended legacy admissions, policies. I assume that was pretty controversial too. But did that open space for people from lower incomes?

MCDUFF: It's an interesting thought. I've not looked at the - what happened income-wise when we stopped giving legacy as a factor. Certainly when you're a 227-year-old institution, you've got students with legacy out there who are going to be admitted whether you took it into consideration or not.

But the university felt that it was - we were not going to consider race, and we'd only been segregated - desegregated - about 40 years at that point in time, then it didn't make sense to take legacy into consideration when we had such a long history.

It wasn't quite as controversial as I thought it would be. We will occasionally hear from families when denial decisions go out who are not happy that race wasn't - that their legacy wasn't considered. But at the time we made the decision, it was a good tradeoff, and I think most people agreed with it.

CONAN: Forty years since desegregation, as you mentioned. Some people would say that's nowhere near long enough to get everything back into its correct alignment.

MCDUFF: That's exactly right. We celebrated the 50th anniversary two years ago of when the university desegregated and it certainly is a different place than it was at that time.

CONAN: How does your racial makeup compare to when you were still considering race as a factor?

MCDUFF: We're in better shape than we were in 2002 by a long shot. We've had a nice turnaround of not just our African-American enrollment, but our Hispanic enrollment has grown substantially. In fact, it's because of changes in the definitions of race and ethnicity that are used on a national basis.

If I look at the students who identified themselves as other than Caucasian as kind of a broad definition, we've increased 136 percent since 2002. Now, the whole freshman class is bigger too; it's bigger by about 16 percent, but certainly it is a much more diverse, by race and ethnicity - I think it's more diverse in any number of factors.

Certainly on a socioeconomic basis, it's a more diverse campus.

CONAN: And do you think you've gone far enough?

MCDUFF: You know, we're going to continue to tweak this because if we're missing good students who should be enrolled here, who help our campus to provide the right educational environment, then we're not there yet. So I think we'll continue to work on it, and certainly we're sitting in a state that's greatly diverse and continuing to grow in its diversity.

So I don't think we're there yet. I think we'll continue to work at it.

CONAN: Nancy McDuff, thanks very much for your time today.

MCDUFF: You're welcome.

CONAN: Nancy McDuff, director of admissions at the University of Georgia, with us today by phone from her office there. Joining us now by phone from here in Washington is Hilary Shelton. He's the senior vice president for policy and advocacy at the NAACP Washington bureau. Nice of you to be with us today.

HILARY SHELTON: Always great to join you.

CONAN: And we've heard about a number of alternatives to affirmative action in college admissions. Do those policies as a group give you confidence that should the Supreme Court end this policy that little will be lost?

SHELTON: Well, we disagree. I mean there's certainly a number of issues that have to be addressed as we talk about inclusion on our nation's campus. Of course as you heard earlier that clearly as we all understand, higher education is the gateway out of poverty. It's that great opportunity in our society.

But if we look and forget about the problems we've had with race and still have with race, as we look at the disparities in our system, and we have to craft an approach to address this problem, that it can include anything and other than race, then we've quite frankly missed the point.

If we're going to - if we have a problem with race, and the racial disparity is still very, very clearly there, whether it's the racial disparities in admissions at colleges and universities, being able to matriculate and graduate from those same schools or being able to even enter professional programs, those disparities are still there.

And as such, we should be able to craft nondiscriminatory programs that allow us to also take into consideration the factor in which race is a dividing concern within our society even still and even at our university.

CONAN: You don't find that taking socioeconomic factors into account, in other words helping poor people as opposed to African-Americans in particular, that that wouldn't do much the same thing?

SHELTON: It's not a substitute. Quite frankly, what we're seeing is discrimination is still happening purely on the basis of race. And as such, we need to craft a solution that recognizes that discrimination level as well. And so certainly it's not excluding these other factors too. As we know, we have a lot of problems in our society with people that are locked out of the opportunity to get a good high-quality education.

In some cases it's ethnicity. In some cases it's economic background. Even geography plays a role in locking people out of opportunity. But race plays that role too, and as such we have to craft solutions that are inclusive of those concerns, of the discriminatory impact of race in our society in the United States.

CONAN: Have you had the chance to look at Richard Kahlenberg's study on alternatives?

SHELTON: I have, and it's a helpful step forward, but it still doesn't speak to a still major problem in our society and one that is still unfortunately (unintelligible) driven by race.

CONAN: Richard Kahlenberg, I wondered if you wanted to respond.

KAHLENBERG: Yeah, well, my friend Hilary makes excellent points that, you know, race continues to affect life chances in our society. But the research suggests that today socioeconomic obstacles are about seven times as important as racial obstacles in terms of determining who's going to do well academically.

And that matters because right now universities in their admissions policies provide large preferences based on race and do almost nothing for low-income students of all races, rhetoric to the contrary. And so what I would hope will come out of this Supreme Court decision is a requirement that before universities jump to using racial preferences, that they need to aggressively pursue these alternatives, including, most importantly, providing a leg up to economically disadvantaged students of all races.

CONAN: Well, if the court says racial preferences are unconstitutional, couldn't they also find that socioeconomic preferences are also unconstitutional?

KAHLENBERG: In theory, but in practice I think that's very unlikely. So the Supreme Court looks at the Equal Protection Clause of the 14th Amendment and defines race as a special category where you have to have a very compelling purpose, and they say almost never can you use race. By contrast, economic status is something we consider all the time.

So for example, in our tax code, wealthy people pay a higher marginal rate than low-income people, and there's no constitutional problem with treating people differently based on that economic status. If you had a tax code which, you know, which taxed African-Americans at a different rate than whites, there would be a big constitutional problem with it.

CONAN: Hilary Shelton, I just wanted to ask - as you know, this is a constant irritant in racial conversations, that many see this as patently unfair. If the court were to end affirmative action, might that not have some benefits at least in removing this argument?

SHELTON: I don't think so at all. It still moves to not solve the problem. I mean, clearly, as we talk about other factors - whether it's income, geography or other concerns that are part of the scenario - we know that those discriminatory impact of race and gender. And don't forget, gender also plays a major role in affirmative action programs. They're all crafted to include not only racial and ethnic minorities, but also women as well.

Thus we're solving the problem. The issue is how do we make sure the racial and ethnic minorities don't fall through the cracks? In essence, once again, as we look at the solutions, they are solutions that are helpful. But it also seems as if the issue of looking at our really sorry history of racial discrimination in this country can no longer be part of the consideration as we move to craft solutions to the lack of racial and ethnic minorities on college campuses throughout the country.

CONAN: And I wonder what you thought of Justice O'Connor's timetable. It's been less than 10 years since she wrote that opinion, but she said maybe 25 years, we can phase this out - affirmative action.

SHELTON: Well, there's a hope that we will be able to do that someday. Clearly, if we look at the indicators now, we'll see there's still a great deal of racial disparity in our colleges and universities throughout the country. It's very difficult to find parity anyplace in the United States as we look at racial and ethnic minorities, the global population, college age and so forth, and the number of racial and ethnic minorities actually attending colleges and universities throughout the country.

Certainly it is hopeful that we can move in a place in which we'll see those kind of parities being displayed. But if you look at the real data now, you'll see that now is not the time to pull these programs. We've seen a great deal of improvement in many areas and some setbacks in some others.

Indeed, when we get to the point that we're able to see the kind of parity that we'd like to see in our institutions of higher education in much the same way being reflective of our population, then we'll know that we don't need those programs anymore. But as of right now, we still have all those problems.

CONAN: I'm sure you've been watching the composition of the court carefully. As you look towards tomorrow in the case, what do you anticipate?

SHELTON: Well, this is a Supreme Court that's very hard to (unintelligible). Certainly, if we look at decisions they've made along these lines in prior cases, we'll see that - hopefully, we'll have a very thoughtful assessment of why race is still a problem. Hopefully, they'll continue to look at the issues and the outcome of programs that are in place now, and hopefully they'll see that eliminating one of those programs that have proven to be successful should not be done at this time. We still need affirmative action.

CONAN: Hilary Shelton, thanks very much for your time today. Appreciate it.

SHELTON: Oh, it's my pleasure.

CONAN: Hilary Shelton is the senior vice president for policy and advocacy at the NAACP bureau here in Washington, D.C. He joined us from his office. You're listening to TALK OF THE NATION from NPR News.

And let's see if we can get another caller in on the conversation. Sam(ph) joins us from Oakland.

SAM: Hi there. Can you hear me?

CONAN: Yes. You're on the air, Sam. Go ahead, please.

SAM: Great. So I'm a college counselor here in California. And one thing I've noticed that's been interesting is since the enactment of Proposition 209, which has, you know, eliminated race-based admissions at the University of California and California state schools, is that I still have to convince families that these race-based admissions don't exist.

They have this pernicious belief that somehow, under the table, race-based admissions, you know, are being enacted, and that's excluding, you know, predominantly affluent Caucasian and Asian families from being admitted to the University of California schools.

CONAN: Do they think it's still in existence, or they think it's under the table?

SAM: They think it's under the table. They know that there's a law saying that it cannot happen, but they believe that somehow, under the table, it's still happening.

CONAN: And as we turn back to Richard Kahlenberg. As you look at these programs that you're talking about, these alternatives, in a sense are the people Sam is talking to, are they right? Are there these other alternative policies that do very much the same thing?

KAHLENBERG: Well, I think the policies do seek to preserve racial and ethnic diversity, and that that's a good thing. But the beneficiaries are quite different. So President Obama has suggested that his own daughters do not deserve affirmative action, and I think he's right, that as privileged African-Americans, they don't need a leg up.

Even if the race - the total racial numbers turn out to be similar before and after affirmative action is banned, what's significant is we've opened up the doors for low-income and working-class students of color, as well as low-income and working-class whites and Asians who had not benefited in the past.

I mean, the research suggests that 86 percent of African-Americans at selective institutions are middle or upper class today. So we want to get beyond that and try to really reach out to those who, in any moral sense, deserve a leg up, those who've struggled to overcome barriers associated with economic status and poverty.

CONAN: Sam, as a counselor there in California, do you notice that the admissions policy is different: fairer, less fair, what?

SAM: I think it is a bit more fair. What I've noticed is that some University of California schools will send follow-up admissions information questions to candidates they think that do fall under kind of low socioeconomic classes. They ask questions like, you know, how much do you study and, you know, what's your home environment like? And then I do believe it gives you a better understanding of the kind of holistic view of the process, which is important.

CONAN: But it's interesting that the elimination of the - of affirmative action, specifically, has not reduced, I guess it's fair to say, resentment.

SAM: At least so far I've found, yeah, that's the case.

CONAN: That's interesting. Thank you very much for the call, Sam.

SAM: Thank you.

CONAN: And I wanted to ask you, Richard Kahlenberg. As you look ahead to tomorrow's arguments before the Supreme Court and an eventual decision, what will you be looking for as you hear the arguments tomorrow, and what will you be looking for as you look toward an eventual decision?

KAHLENBERG: Well, I think most people are looking at Justice Kennedy, who is the new swing vote on the Supreme Court and who dissented the last time affirmative action issue came up - with respect to him.

CONAN: So he was with the conservatives.

KAHLENBERG: He was with the conservatives in the University of Michigan cases. And I think what he's likely to do and what I'm watching for, is to see whether he is going to really push universities to say - to try alternatives before they jump to using race. The University of Michigan said, we would love to find a way to get racial diversity without using race, but it's simply impossible. Well, I think the research that we've put out and the research of others suggest that's not true. That in fact, it is possible to create diversity. It's more expensive. It's more difficult. You have to cultivate and help out low-income and working-class students who may have had disadvantages and will need a little extra support, but it's possible to do it.

And in fact, you end up doing something much more important. I mean, Martin Luther King, in his 1964 book, "Why We Can't Wait," looked at our history of discrimination in this country and said we need a remedy. But he suggested not a Bill or Rights for African-Americans, but a Bill of Rights for the disadvantaged. And I'm hoping that that's what will come out of this Supreme Court.

CONAN: Also, the former solicitor general, Justice Kagan, will not be participating in this since she participated in this case before being appointed to the Supreme Court, being affirmed by the Senate. But, Richard Kahlenberg, thank you very much for your time today. We appreciate it.

KAHLENBERG: Well, thank you so much for having me, Neal.

CONAN: When we come back from a short break, the modern master of the jazz harmonica joins us. Stay with us. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright National Public Radio.